Prof Resp

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ABA Model Code of Professional Responsibility
(MC)

A set of recommended standards designed to be adopted by the states. Some states still use the Code while others have formulated their own rules or subscribed to the ABA Model Rules. The Code consists of nine Canons followed by two sets of detailed rules: the Disciplinary Rules and Ethical considerations.

Disciplinary Rules (DR)

mandatory duties, the breach of which may subject the lawyer to disciplinary actions.

Ethical Consideration

Aspirational goals that are sometimes treated as mandatory

ABA Model Rules of Professional Responsibility
(MR)

the model rules, adopted in 1983, have been adopted by a majority of the states. Remaining states may have created their own rules or still subscribe to the MC.

Good Moral Character

This is required of every applicant, Admission may be denied for acts of moral turpitude (e.g. fraud, forgery, perjury) or concealing information from the Bar Committee. (DR 1-101 (A), MR 8.1(A))

Attorney's Duty Respecting Bar Applicants

An attorney must not further the application of someone seeking admission to the bar if that person is unqualified as to character, education or other relevant attributes. (DR 1-101 (B), EC 1-3, MR 8.1(A))

Past Bad Conduct

This will not be grounds for denying admission to bar where applicant shows rehabilitation.

Admission Pro Hac Vice

a doctrine which allows an attorney who is not licensed to practice in the forum state, to litigate a particular case. Admission is within the local court’s discretion.

Admission of Out of State Lawyers

Admission to the bar of one state does not authorize practice in other states. It is illegal to practice where not admitted to the Bar

Reciprocity

the admittance of a practicing attorney from a state with an equivalent agreement without requiring an examination

Admission to Practice Before Courts of Appeal
and District Courts

To practice before Courts of Appeal and District Courts, a lawyer must 1) be admitted to practice in a state where the court sits, 2) be of good moral character, and 3) be sponsored by a present member of the court’s bar.

Bar is Self-Policing

The Bar may impose professional discipline for an attorney’s misconduct, whether or not any criminal or civil sanctions are imposed

Violation of Disciplinary Rule of the MC or MR

A violation of the ABA disciplinary rule or code will be grounds for attorney discipline.

Act of Moral Turpitude is Grounds for Discipline

Any act of moral turpitude, even if committed outside of the role of attorney, may result in discipline

Disbarment

A sanction involving permanent revocation of an attorney’s license

Suspension From Practice

A disciplinary sanction involving temporary revocation of an attorney’s license.

Reprimand

A disciplinary sanction involving public or private censure.

Procedural Due Process

the procedural safeguards of the 5th Amendment are applicable in disciplinary proceedings.

Privilege Against Self Incrimination

This may be exercised by the attorney in disciplinary proceedings.

Standard of Proof

Guilt must be established by convincing proof and to a reasonable degree of certainty.

Duty of Attorney to Report Ethical Violations

an attorney must report ethics violations by other attorneys unless he or she learned of the misconduct through a privileged communication. The attorney also has an obligation to testify about misconduct if properly requested to do so. The Model Rules limit the duty to report ethical violations to those instances where the violation raises substantial question as to attorney’s “honesty, trustworthiness, or fitness as a lawyer.”

Duty to Prevent Unauthorized Practice of Law

A lawyer must not:

(1) practice law were not permitted;

(2) aid a non-lawyer in the practice of law;

(3) split fees with a non-lawyer,

(4) enter a partnership with a non-lawyer to practice law, or

(5) use a non-lawyer to do law related work, unless the lawyer maintains a direct relationship with the client, supervises the delegated work, and is responsible for the results.

Practice of Law

Anything requiring the skill and judgment of a lawyer

Acceptance of Employment

Lawyers do not have an obligation to accept every case offered to them, but should work to accept their fair share of unpopular matters or indigent, unpopular, clients.

Refusing Court Appointments

An attorney may refuse a court appointment if acceptance would create a financial hardship to the attorney, or if the attorney is unable to give effective representation due to personal bias or prejudice

Duty to Decline Representations

A lawyer must reject employment which would require him or her to: (1) violate the law, a Disciplinary Rule, or a Model Rule; (2) assert frivolous claims or defenses brought solely to harass or maliciously injure; or (3) when he or lacks competence to handle the matter.

Solicitations Banned Under Traditional Rules

Traditionally all attorney solicitations to prospective clients were banned for fear of misleading of client or overreaching of attorney.

Advertising Banned under Traditional Rules

Traditionally, all advertising was banned for

fear of breeding mistrust in the legal system.

Ban continued until the early 1970’s

Attorney's Right to Commercial Speech allows
Advertising and Solicitations

Modernly, constitutional challenges have lifted the ban on attorney advertising. States are currently allowed to regulate attorney advertising. States can even ban attorney advertising if likely to overreach or mislead.

Communications must not be Misleading

ABA Model Rule 7.1 bans false and misleading advertising.

Definition of False and Misleading

Advertising is deemed to be false and misleading if it makes an unverifiable comparison of results, creates unreasonable client expectations, or fails to include any material information

Advertisement must conform to ABA Model Rule 7.2

This rule requires that

(1) the advertisement identify the attorney responsible for its contents,

(2) the attorney must get clients’ permission before using their name or likeness, and

(3) any listing of specializations must be limited to “patent attorney” or various “admiralty” catagorizations

Advertisements May State Attorney's Fields of
Practice

An attorney may list the areas of her primary practice in any advertisement. But the attorney cannot state expressly or impliedly that she is a certified expert.

Attorney may not Compensate for Client Referrals

An attorney may not pay individuals for recommending her services. But an attorney may pay fees to a referral service

Limitations on Attorney Solicitations

An attorney may not initiate contact with a prospective client for a fee related work if the attorney does not have a familiar or existing professional relationship.

Attorney Cannot Hire Agent to Solicit

In California, hiring of an agent to conduct otherwise illegal solicitations is a crime.

An attorney will not violate ABA Model Rules if she contacts a prospective client to offer free legal services.

Partnerships

This requires a sharing of responsibilities and liabilities.

Associate

a salaried employee of the firm who cannot hold himself out as being a partner

Of Counsel

a lawyer with a continuing relationship with the firm other than as a partner or associate.

General Counsel

A proper designation for a lawyer who does a substantial amount of work for a particular client, or is in charge of an in-house legal department

Trade Names

This may be used so long as it does not imply a connection with a government agency or a public or charitable, legal services organization

Removal of Names

Names of lawyers entering public service for an extended period of time must be removed from the firm name

Restrictive Covenants

Covenants limiting a lawyer’s right to practice are prohibited, except as a condition to payment of benefits after permanent retirement.

Unconscionable or Clearly Excessive Fees

Agreements calling for unconscionable or clearly excessive fees are unenforceable and may subject an attorney to discipline

Excessive Fees

An excessive fee is a fee which would seem improper to a reasonable attorney.

Reasonable Fees

Factors to consider when determining reasonableness of fee includes time and labor of attorney, novelty and difficulty of issue, loss of other work while working on this case, rates of other attorneys, amount at stake, results obtained, time constraints, nature of prior attorney/client relationship, quality of attorney’s work, and whether it is a fixed or contingent fee.

Contingent Fees

These are proper in civil cases if the client is unable to pay a flat fee and client is informed of the nature of a contingent fee. Contingent fees are prohibited in criminal cases and seldom allowed in domestic relations cases. The MR allows contingent fees in some domestic cases, but will subject an attorney to discipline if used in cases of divorce, amount of alimony, amount of child support, or amount of property settlement

California Treatment of Contingent Fees

California does not prohibit contingent fees in criminal cases, but it is uncertain if courts would enforce a contingent fee agreement in criminal defense cases. California does not prohibit contingent fees in domestic relations so long as they do not promote the dissolution of the marriage.

General Rule Regarding Contingent Fees

Under MR 1.5, the use of a contingent fee must be in best interest of client. When in doubt as to whether a contingent fee is consistent with the client's best interest, the attorney should always offer an alternative payment plan

Retainer fee

This is a fee paid to assure the lawyer's availability. A retainer fee does not need to be returned upon withdrawal from a case

Fee Splitting

Generally fee splitting among lawyers is prohibited. There are three exceptions –

(1) lawyers in a firm may pool and divide fees;

(2) separation and retirement payments are permitted; and

(3) splitting with an outside lawyer is permitted if the client consents, the division is proportionate to the services and responsibility of each lawyer, and the total fee is reasonable. The MR’s allow fee splitting in proportion to services performed by the lawyer or in any different proportion if the lawyer gets the client’s written consent AND the lawyers assume joint responsibility for the matter

Attorney Lien

An attorney lien allows an attorney to retain possession of a client’s property to secure professional fees and disbursements of any matter. Such liens can only be asserted as a defense to the client’s suit for possession

California Limits Lien

California prohibits an attorney from retaining client files, papers or property to compel clients to pay

Charging Liens

Non-possessory liens on a particular fund to secure expenses in creating that fund. The attorney may assert these liens affirmatively.

Duty to Keep Client's Secrets and Confidences

This includes an ethical duty as distinguished from the attorney/client privilege. The duty is governed by DR 4-101(B). The ethical duty prohibits voluntary disclosure by the attorney in any context. In contrast, the attorney/client privilege only protects against compelled revelation of attorney/client communications.

Exception to Duty

The duty to keep client confidences does not apply to

1) situations where the attorney believes disclosure will prohibit client from committing a crime that may result in death or serious bodily harm, or

2) in instances where the information help clear the attorney in charges of malpractice by the client.

Confidences

Communications between an attorney and client which are protected under an ethical duty and the attorney/client privilege.

Secrets

Information gained from any source, which the client has requested be kept secret, or which would be embarrassing or detrimental to the client if disclosed. Secrets are only protected under the ethical duty

Attorney/Client Privilege

The attorney may disclose clients secrets or confidences if the client consents; disclosure is required by law or court order; the client seeks the attorney’s aid to commit a future crime or fraud; the communications regard a controversy between former joint clients, between parties who claim through a deceased client, over a deceased client’s dispositive writing, or over a document witnessed by the lawyer; or the information is relevant to an issue of breach of duties arising out of the attorney client privilege.

Duty of Undivided Loyalty

An attorney will be subject to discipline for breaching the duty of undivided loyalty. This duty requires that an attorney not take or continue a case where a conflict of interest exists, unless full disclosure is made and the client consent is obtained.

Conflicts of Interests

These include personal interests, interests of other clients, and interests of third parties. These interests should not be allowed to interfere with lawyers loyalty to her client.

Imputed Disqualification

For conflict of interest purposes, a law firm is considered a single unit; if one lawyer in a firm is disqualified, no other lawyer within the firm may take the case.

Conflicts Between Interests of the Attorney and
Client

An attorney is subject to discipline for accepting or continuing a case where the attorney’s personal interests might affect his professional interests.

Gifts

Voluntary gifts are not prohibited, but the lawyer should urge the client to seek the advice of a competent third person. A lawyer should not prepare a legal instrument in which the client gives the attorney a substantial gift by will, except where the client is a relative to the lawyer

Permissible Gifts

A lawyer may accept gifts from his client if the gifts meet the general standards of fairness and are given as a gift for a holiday, special event, or token of appreciation.

Bequests

An instrument naming a lawyer as beneficiary should be drawn by other counsel selected by the client

Witness

A lawyer must withdraw or refuse employment if the lawyer or another member of the firm will be called as a witness. Disclosure and client consent are irrelevant

Attorney May Serve as Witness

A lawyer may serve as advocate and witness when her testimony concerns an uncontested matter, a formality, or fees; undue hardship would result to the client if attorney were not allowed to serve in both capacities; or the lawyer is called to testify in a different case and the testimony would not prejudice the client.

Attorney from Firm may Serve as Witness

An attorney from same firm may testify in the trial of an advocate if the testimony does not involve a material fact

Conflict of Interest Between Two Clients

A lawyer cannot represent a client if in doing so, she is directly adverse to the interest of another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after consultation.

Multiple Representation (non-litigation)

Parties with potentially conflicting interests can be represented by one attorney if the lawyer can effectively represent both parties, the lawyer discloses the potential conflict and the disadvantages, and the clients consent. If actual conflict arises then the attorney must withdraw

Multiple Representation (litigation)

Representing multiple clients in litigation is never proper if client interests actually conflict. If the conflict is potential, representation is proper if the lawyer reasonably believes she can effectively represent both parties, the lawyer discloses potential conflicts and the disadvantages, and the clients consent.

Acting as Arbitrator or Mediator

A lawyer may serve as an arbitrator or mediator after disclosing past or present relationships with the parties. But a lawyer shall not continue to act in this capacity if his exercise of independent judgment on behalf of a client will be affected.

Former Judge

A former judge may not handle a matter if he or she acted on the merits of the case while on the bench

Improper Influence

A lawyer must not imply that she can use improper influence or means that violate the professional rules, to benefit a client

Substantial Responsibility Rule

A lawyer shall not accept private employment on a matter for which the lawyer had personal and substantial responsible responsibility while working for a government, unless the governmental agency consents. But the lawyer’s entire firm will not be disqualified as long as the individual disqualified lawyer has no personal involvement in the matter nor shares in fees, and a written notice given to the prior governmental agency.

Husband/Wife Attorneys

Where a husband and wife represent opposing clients, there is not an automatic conflict. However, the final decision regarding representation should be with the clients after full disclosure.

Third Party Compensation

The attorney must not accept compensation from a third party for representing the client unless

(1) the client consents,

(2) the third party does not interfere with the attorney’s independence or representation, and

(3) the arrangement does not compromise the client’s confidential information.

Duty to Safeguard Client's Money and Property

Attorney in possession of a client’s money or property must not steal, borrow, use, or commingle the money or property

Client's Trust Account

Funds received on a client’s behalf must be placed in an account separate from the attorney’s own funds. Funds belonging in part to the attorney presently or potentially, must go into the trust account and when the attorney’s portion is fixed and undisputed, it must be promptly withdrawn.

Disputed Funds

These funds must remain in the trust account until the dispute is resolved.

Safeguarding Client's Property

The attorney must label the client’s property and keep it in a safe place.

Duty of Notification and Delivery

The lawyer must notify the client about funds and property received in the client’s behalf. Upon demand, the attorney must promptly pay money or give property to which the client is entitled.

Duty to keep Records and Render Accounts

Failure to keep accurate records for five years after termination of representation subjects an attorney to discipline

Duty of Competence

An attorney will be subject to discipline for incompetence when

1) the lawyer takes work she is not competent to handle, unless she plans to become competent through study and investigation or competent co-counsel is associated with the client’s consent;

2) the lawyer fails to prepare adequately, or

3) the lawyer neglects or abandons the client.

Clauses Limiting Lawyer's Liability

A lawyer shall not make an agreement which prospectively limits the lawyer’s liability to his client for malpractice, unless permitted by law and unless the client is independently represented in making the agreement

Limiting Liability

California bars a lawyer from contracting to prospectively limit his liability to his client for malpractice

Division of Authority Between Attorney and
Client

The client decides all matters affecting the merits of the case and the client’s substantial rights

Attorney's Duty to Advise

The attorney must keep the client fully informed about the case and provide the legal advice necessary for the client to make any decisions. The attorney has the final decision on technical questions, strategy and procedure

Client's Power to Fire Attorney

The client has a non-waivable right to fire the attorney at any time, with or without cause. The client is liable in quasi-contract for the reasonable value of the work done before discharge

Withdrawal by Attorney (Mandatory)

Mandatory withdrawal from a case will be required where the client’s sole objective is to harass or maliciously injure another, where the continued representation would reguire the attorney to violate a disciplinary rule, or where the lawyer’s physical or mental condition makes it unreasonable difficult to provide effective representation.

Withdrawal by Attorney (Permissive)

Attorney may withdraw from representation, but is not required to do so where there is no harm to the client; the client takes and action involving the attorney’s services and the attorney reasonably believes the action is criminal or fraudulent; the client uses the attorney’s services to commit a crime; the client’s objective is repugnant ro imprudent; the client breaks a promise made to attorney; representation creates a financial hardship to attorney; and the client does not cooperate with attorney.

Duties of Lawyer Acting as Advocate

the lawyer must use every legitimate effort to win on behalf of the client. In litigation, doubts as to facts or law should be resolved in the client’s favor.

Duties of Lawyer Acting as Advisor

In nonlitigation matters, the lawyers should offer advice.

Duties of Prosecutor and Government Lawyers

Prosecutors must seek justice, not just victory. Initiating criminal proceedings without probable cause is grounds for discipline. Prosecutors should pursue evidence favorable to the defense and must disclose all that is found.

Counseling Illegal Conduct

Counseling or participating in illegal conduct or fraudulent conduct is improper.

Discovery of Fraud

When a lawyer discovers that the client has defrauded a person or tribunal during the course of representation, the lawyer must:

1) urge the client to rectify the fraud, or

2) reveal the fraud (except where the information is protected as a confidence or secret)

Client's Plan to Commit Perjury

Upon learning of her client’s plan to commit perjury on the stand, the lawyer is required to attempt to dissuade the client and, if unsuccessful, must seek the court’s permission to withdraw. If permission to withdraw is denied, the attorney should allow the client to testify, but must not argue the false story

Fraud by Third Party

If a person other than the client has committed a fraud on the tribunal, the lawyer must reveal the fraud to the tribunal

Unfounded Claims

Filing a baseless or unwarranted claim will subject the attorney to discipline. An attorney must have a basis for submitting a claim. This may include a good faith argument for extension, modification, or reversal of existing law.

Actions Taken Solely for Delay

Filing an action solely for delay is grounds for discipline

Duty to Expedite Litigation

An attorney has a duty to expedite litigation consistent with the interests of the client.

Threats of Criminal Prosecution

Threatening criminal prosecution to gain an advantage in a civil matter is prohibited.

Direct Communication with Adverse Party

A lawyer must not communicate with a party represented by counsel, absent consent of the other counsel

Client Contact

Opposing parties may communicate directly without both attorneys

Unrepresented Adverse party

The attorney may contact an unrepresented adverse party but he must not give legal advice other than to get legal counsel

Communications with Jurors

No communication with the jury is allowed before trial. During trial, lawyers connected with the case cannot communicate with the jurors on any matter, and lawyers not connected with the case cannot communicate with the jurors about the case. After trial, a lawyer may interview the jurors. These rules also apply to a juror’s family. A lawyer must report any juror misconduct to the court

Use of False Evidence

Creating or using false evidence or perjured testimony subjects lawyer to discipline.

Suppression of Evidence

An attorney must not suppress evidence that he has a legal duty to reveal under statute, procedural rule or court order

Advising Flight of Witness

An attorney must not advise a person to hide or flee to avoid testifying.

Paying witnesses

Paying a statutory fee is proper. An expert witness may be paid a reasonable flat fee. Lay witnesses may be reimbursed for expenses and loss of time

Cross Examination of Adverse Witness

The cross-examination of an adverse witness cannot be for the sole purpose of harassing or degrading the witness.

Improper Trial Tactics

The lawyer must not use trick or deception at trial

Failure to Adhere to the Record

Referring to insupportable matters at trial will subject the attorney to discipline. Lawyer cannot allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence

Statements of Personal Knowledge/Opinions

During trial, a lawyer must not assert personal knowledge about the facts at issue. Statements of personal opinions as to justness of cause, credibility of witnesses, culpability of civil litigant, or the guilt or innocence of the accused are also improper.

Appeals to Emotions or Prejudice

Argument at trial based on emotion or prejudice should be avoided.

Intentional or Habitual Violation of Rules of
Evidence or Procedure

The intentional or habitual violation of rules of evidence or procedure can result in discipline. But a good faith challenge to the validity of a rule in proper.

Oral Communication with Judicial Officers

a lawyer must not communicate with the presiding judge on the merits of a pending case absent opposing counsel

Written Communication with Judicial Officers

Writing to a judge regarding the merits of a pending case is forbidden unless a written copy is sent to the opposing counsel

Ex Parte Communications with Judicial Officers

Ex Parte communication with judicial officers are proper where authorized by court rules.

Gifts or Loans to Court Personnel

Gifts to a judge or court staff are prohibited unless permitted by the Code of Judicial Conduct.

Duty of Candor and Courtesy Towards Opposing
Counsel

The attorney must not make false statements or withhold items he is legally obligated to reveal. The lawyer should treat opposing counsel with civility and should refrain from making derogatory or unfair comments. The lawyer should observe local customs unless reasonable notice of intent to depart therefrom is given.

Duty of Candor Towards Court

Affirmative misstatements of fact are prohibited. Adverse authority from the controlling jurisdiction which is directly opposed to the attorney’s position must be disclosed if not discovered by opposing counsel. But after disclosure, it is proper for the attorney to distinguish the adverse authority

Duty of Courtesy and Respect for Courts and
Judges

An attorney must behave civilly in court. Overly deferential conduct towards the judge or jury is improper

Selecting Qualified Judges

Lawyers should vigorously protest the selection of unfit judges.

Defending the Judiciary

Lawyers should defend the judiciary against unjust attacks

Criticizing Judges

Lawyers may criticize judges but should do so fairly and respectfully. Lawyers cannot make knowingly false statements about qualifications or integrity of a judge or judicial candidate.

Opposing Unjust Laws

Lawyers should seek to change unjust laws by lawful means and should participate in the overall improvement of the law, legal system, and the legal profession.

Duty to Avoid Even the Appearance of Impropriety

Lawyers have an ethical obligation to avoid acts of impropriety, and even the appearance of impropriety, whether or not they act in their capacity as attorney.

Selection and Tenure of Judges

Federal Judges are appointed by the President, subject to Senate confirmation. They hold office for life conditioned upon good behavior. State law governs the selection of State Court Judges